Jump to Content Jump to Main Navigation

Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part II Subcommittee on Prevention, Art.10 Rules of Procedures

Kerstin Buchinger

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 29 June 2022

Subject(s):
Torture — Treaties, interpretation

(p. 792) Article 10  Rules of Procedures

  1. 1.  The Subcommittee on Prevention shall elect its officers for a term of two years. They may be re-elected.

  2. 2.  The Subcommittee on Prevention shall establish its own rules of procedure. These rules shall provide, inter alia, that:

    1. (a)  Half the members plus one shall constitute a quorum;

    2. (b)  Decisions of the Subcommittee on Prevention shall be made by a majority vote of the members present;

    3. (c)  The Subcommittee on Prevention shall meet in camera.

  3. 3.  The Secretary-General of the United Nations shall convene the initial meeting of the Subcommittee on Prevention. After its initial meeting, the Subcommittee on Prevention shall meet at such times as shall be provided by its rules of procedure. The Subcommittee on Prevention and the Committee against Torture shall hold their sessions simultaneously at least once a year.

1.  Introduction

1 Article 10 OP is modelled on Article 18 CAT, which itself is based on Articles 35 to 39 CCPR.1 It requires the SPT, as the CAT Committee, to elect its officers, ie one chairperson, three (originally two) vice-chairpersons, and one rapporteur, for a term of two years, and to establish its own rules of procedure which shall provide that, at the beginning, six (now fourteen) members shall constitute a quorum2 and that decisions shall be made by a majority vote of the members present. Although the SPT, as with the CAT Committee, is free to decide the number of its annual sessions, both bodies must hold one at the same time, and all meetings shall be confidential.

(p. 793) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)3

Article 7

  1. 1.  The Committee shall meet for regular sessions twice a year, and for special sessions at the initiative of its Chairman or at the request of not less than one third of its members.

  2. 2.  The Committee shall adopt its own rules of procedure. Its decisions shall be taken by a majority of its members present and voting.

  3. 3.  Half of the members shall constitute a quorum.

Revised Costa Rica Draft (15 January 1991)4

Article 7

  1. 1.  The Subcommittee shall meet for a regular session at least twice a year; for special sessions at the initiative of its Chairman or at the request of not less than one third of its members.

  2. 2.  The Subcommittee shall meet in camera. Half of the members shall constitute a quorum. The decisions of the Subcommittee shall be taken by a majority of the members present, subject to Article 14, paragraph 2.

  3. 3.  The Subcommittee shall draw up its own rules of procedure.

  4. 4.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee against Torture and the Subcommittee under this Protocol.

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)5

Article 7

  1. 1.  The Sub-Committee shall elect its officers for a term of two years. They may be re-elected [once].

  2. 2.  The Sub-Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:

    1. (a)  Half plus one member shall constitute a quorum;

    2. (b)  Decisions of the Sub-Committee shall be made by a majority vote of the members present;

    3. (c)  The Sub-Committee shall meet in camera.

  3. 3.  The Secretary-General of the United Nations shall convene the initial meeting of the Sub-Committee. After its initial meeting, the Sub-Committee shall meet at such (p. 794) times as shall be provided in its rules of procedure [, but it shall meet for a regular session at least twice a year.]

  4. 4.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of [the Committee against Torture and ] the Sub-Committee under this Protocol.

Text of the Articles which Constitute the Outcome of the Second Reading (2 December 1999)6

Article 10 [7]

  1. 1.  The Sub-Committee shall elect its officers for a term of two years. They may be re-elected.

  2. 2.  The Sub-Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:

    1. (a)  Half plus one member shall constitute a quorum;

    2. (b)  Decisions of the Sub-Committee shall be made by a majority vote of the members present;

    3. (c)  The Sub-Committee shall meet in camera.

  3. 3.  The Secretary-General of the United Nations shall convene the initial meeting of the Sub-Committee. After its initial meeting, the Sub-Committee shall meet at such times as shall be provided in its rules of procedure.

US Draft (16 January 2002)7

Article 6

The Committee shall establish rules of procedure for the Subcommittee on Prevention, but these rules shall provide, inter alia, that:

  1. (a)  [Four] members shall constitute a quorum;

  2. (b)  Decisions of the Subcommittee shall be made by a majority of the members present.

Article 7

The Committee shall convene the initial meeting of the Subcommittee. After its initial meeting, the Subcommittee shall meet at such times as shall be provided in its rules of procedure.

2.2  Analysis of Working Group Discussions

During the first session of the Working Group, held from 19 to 30 October 1992, the then Article 7 of the revised Costa Rica Draft was discussed within the third basket of issues, ‘Composition and structure of the Subcommittee’.8 Concerning Article 7(1), (p. 795) the capacity to convoke special sessions of the body at the request of only one third of the members was questioned by certain delegations. They considered that this had both financial and other implications and that it would be preferable to have a majority of the members make such a determination. With regard to paragraph 2, some delegations considered that a majority of the SPT should constitute a quorum rather than one half the members. Regarding paragraph 4, one representative inquired whether this provision regarding the staff and the facilities required to service the needs of the body would be more logically placed with the other articles dealing with financial matters. The Representative of the Secretary-General indicated that the substance of this paragraph was a standard provision which should be retained, but that the location of the provision was not a significant issue.

In the course of its second session from 25 October to 5 November 1993, the Working Group continued to consider Article 7.9 After an extensive debate, the Working Group decided to redraft this Article on the basis of Article 18 CAT and a text that had been additionally proposed by certain delegations. The Working Group then agreed on the text. As to paragraph 1, there was consensus that the new wording should follow paragraph 1 of Article 18 CAT. One delegation proposed to add the word ‘once’ at the end of the second sentence of this paragraph. Concerning paragraph 3, there was consensus that the wording of the paragraph should follow Article 18(4) CAT. Some delegations, however, felt that a minimum number of regular sessions per year should be stated in order to guarantee sufficient funding. In order to meet this purpose, it was agreed to add the following wording at the end of the second sentence: ‘but it shall meet for a regular session at least twice a year.’ With regard to paragraph 4, there was consensus that the wording should follow Article 18(3) CAT, although one delegation felt that the reference to the CAT Committee should be deleted. Thus, the Working Group decided to put the reference in square brackets.

At the sixth session, held from 13 to 24 October 1997, a general discussion of Article 7 was reopened.10 The observer for Sweden expressed the view that the rules of procedure referred to in paragraph 2 should apply also to the missions of the SPT. It was suggested to add a subparagraph, stating that the rules of procedure shall also be applied, mutatis mutandis, to delegations of the SPT on missions. Although the Working Group decided not to include the Swedish proposal in the text of the Article, it was recommended that the SPT should be advised to take the proposal into account in drafting its rules of procedure. The representative of China found that the words ‘the Committee against Torture and’ in brackets should be deleted from Article 7(4). The Chairperson of the drafting group reported that it had been decided that the contents of the brackets in paragraphs 1, 3, and 4 should be deleted. Paragraph 2 would remain as it stood. Regarding paragraph 4, the relationship between the CAT Committee and the SPT had not yet been completely agreed upon and a review of the paragraph might become necessary at a later stage in order to ensure consistency.11 Consequently, Article 7 (then Article 10) was adopted on 13 October 1997.12 On 14 October 1997, the Working Group decided to (p. 796) delete paragraph 4 as it was felt to be redundant, especially since Article 16(2) referred to the same issue.13 This version was retained in all later drafts. In the final proposal, the Chairperson-Rapporteur added a sentence to the effect that the CAT Committee and the SPT shall hold at least one annual session simultaneously.14

3.  Issues of Interpretation

10  While the revised Costa Rica Draft of 1991 had provided for two regular annual sessions and special sessions at the request of one-third of the SPT’s members, as well as for a quorum of half of the members,15 the Working Group agreed that Article 10 OP shall be based, as far as possible, on Article 18 CAT.16 Literally, Article 10(1) corresponds to Article 18(1) CAT.

3.1  The Bureau of the SPT

11  The SPT shall elect its officers, who may be re-elected, for a term of two years. Ms Casale was elected as first Chairperson in February 2007, Mr Petersen and Mr Rodríguez-Rescia served as the two first Vice-Chairpersons. From February 2009 to February 2011, Mr Rodríguez-Rescia was elected Chairperson, and Mr Coriolano and Mr Petersen acted as Vice-Chairpersons. In view of the (then) forthcoming expansion, the SPT decided at its twelfth session to expand the bureau to five members at its thirteenth session.17 Thus, the bureau, which was elected in February 2011, comprised Mr Evans as Chairperson and Mr Coriolano18, Mr Hajek, Ms Jabbour, and Ms Muhammad as Vice-Chairpersons.19 It was agreed that each of the bureau members should also have distinct responsibilities in order to reach a high level of effectiveness and efficiency within the enlarged SPT.20 At its nineteenth session, the SPT elected its bureau for the period until February 2015. Mr Evans was re-elected as Chairperson. The four elected Vice-Chairpersons and their areas of primary responsibilities were Ms Jabbour (NPMs), Ms Muhammad (jurisprudence), Mr Tayler Souto (SPT visits), and Mr Zongo (external relations). Again, Ms Muhammad served as the SPT’s Rapporteur.21 A partly new composition of the bureau arose from the elections held at the twenty-fifth session of the SPT. While Mr Evans continues to be Chairperson and Ms Mohammad is still SPT Rapporteur responsible for matters relating to jurisprudence, the three other Vice-Chairpersons and their primary responsibilities to (p. 797) date are Mr Font (SPT visits), Ms Jabbour (external relations), and Mr Lam Shang Leen (NPMs).22

3.2  The Conduct of Business

12  Article 10(2) OP corresponds almost literally to Article 18(2) CAT. The SPT, as the CAT Committee, is free to establish its own RoP, with only a few general rules that have to be contained therein. As in Article 18(2)(a) CAT, the quorum shall be half the members plus one. When the SPT was first set up and comprised ten members, six members constituted a quorum. As the number of SPT members was soon to be increased from ten to twenty-five according to Article 5(1) OP, the SPT decided that fourteen (instead of only thirteen) members shall constitute a quorum.23 Decisions of the SPT shall be made by a majority vote of the members present. If only fourteen members are present, at least eight members must vote in favour.

3.3  Meetings in camera

13  While Rule 31 of the RoP of the CAT Committee provides that all meetings of the CAT Committee shall be held in public, unless decided or required otherwise, Article 10(2)(c) OP stipulates that the SPT shall meet in camera. This strict requirement of confidentiality was already contained in Article 7(2) of the revised Costa Rica Draft of 1991 and is based on Article 6(1) ECPT. It results from the highly confidential and sensitive nature of country missions,24 which constitute the main task of the SPT. Nevertheless, it might have been useful to allow the SPT also to hold public meetings when it discusses general issues, such as its methodology of conducting preventive visits to places of detention or general conclusions based on its experience in the field. Moreover, the SPT shall, in accordance with Article 16(3) OP, present a public report on its activities to the CAT Committee. It might be useful to discuss this report at a joint public session of the CAT Committee, ie with the members of the SPT present at a public session of the CAT Committee in accordance with Article 10(3) OP (last sentence) and Rule 31 of the CAT Committee’s RoP. Finally, the CAT Committee, pursuant to Article 16(4) OP, is authorized to make a public statement or to publish a country-specific mission report of the SPT if the State party concerned refuses to cooperate or to take steps to improve the situation in the light of the Subcommittee’s recommendations.25

3.4  The Rules of Procedure

14  For quite some time the SPT decided to keep its RoP as one of its ‘key internal working documents’.26 It was only in 2010 that the SPT decided to make them public, stating that—while fully respecting the principle of confidentiality embodied in Article 2(3) OP—it did not consider either its activities or the approaches that it takes to its work (p. 798) to be confidential as such.27 Consequently, the RoP were published on 5 January 2011.28 They have been revised and newly adopted at the SPT’s eighteenth session (from 12 to 16 November 2012).29

15  The RoP, consisting of thirty-four Rules, are composed of four parts. Part one (General Rules) (Rules 1 to 29) elaborates on the sessions of the SPT, its members, bureau, secretariat, communications, languages, confidentiality, the documents of the SPT, its conduct of business, and the co-operation with UN organs and mechanisms as well as other international, regional, and national institutions or organizations. Part two (Rule 30) relates to the NPMs, Part three (Rule 31) to interpretation. Part four (Rules 32 to 34) addresses the issues of suspension, amendment, and additions.

3.5  Sessions of the SPT

16  Article 10(3) OP is based on Article 18(4) CAT. After the initial meeting is convened by the UN Secretary-General, the SPT is itself responsible for deciding the number and dates of its meetings, subject of course to its financial resources and the availability of UN conference services, and to convene its meetings accordingly. The first session of the SPT was held at the OHCHR (Palais Wilson) in Geneva from 19 to 23 February 2007.30 It decided to hold three annual sessions in Geneva. These regular sessions, each lasting one week, are held in February, June, and November each year. According to Rule 1(4), special sessions shall be held in addition to regular sessions at dates agreed by the SPT in consultation with its Secretariat.

17  The last sentence of Article 10(3) OP was not contained in any of the various drafts submitted to the Working Group, but was added only in the final proposal of the Chairperson-Rapporteur of 17 January 2002.31 It provides that, at least once a year, the CAT Committee and the SPT shall hold their sessions simultaneously. This does not mean that the entire session must be held jointly by both bodies. It only requires both bodies to find suitable common dates for at least one session per year in order to enable them to meet jointly and/or to hold informal meetings together. When deciding on the dates of its sessions, the SPT takes into account that these dates coincide with those of the CAT Committee. In practice, the joint meetings are held in the course of each year’s November session. For these joint meetings, the RoP of the CAT Committee as the parent body shall apply. Since Rule 31 of the CAT Committee’s RoP contains the principle of public meetings, such joint meetings shall be held in public unless the CAT Committee decides otherwise. It has proven to be useful to hold joint public sessions on general issues, such as the methodology of country missions or general conclusions based on the experience of country missions. Thus, the simultaneous meetings are used to discuss a range of issues of mutual concern (both substantive and procedural), such as the concept of torture and other forms of ill-treatment; the SPT’s strategic focus, the methodology of information sharing between the two bodies, etc.32

(p. 799) 18  The revised Costa Rica Draft also contained provisions requiring the UN Secretary-General to provide the necessary staff and facilities for the effective performance of both the CAT Committee’s and the SPT’s functions under this Protocol. In fact, the funding of the SPT, including its staff and facilities, out of the regular UN budget is included in Article 25. In addition, Article 26 provides for a Special Fund financed through voluntary contributions.33

Kerstin Buchinger

Footnotes:

1  cf above Art 18 CAT.

2  See SPT, ‘Rules of Procedure’, UN Doc CAT/OP/3, r 25.

3  Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Costa Rica (1980) UN Doc E/CN.4/1409.

4  Letter dated 15 January 1991 from the Permanent Representative of Costa Rica to the United Nations at Geneva addressed to the Under-Secretary-General for Human Rights (1991) UN Doc E/CN.4/1991/66.

5  Report of the Working Group on the Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its fourth session (1996) UN Doc E/CN.4/1996/28, Annex I; see also Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1993) UN Doc E/CN.4/1994/25, Annex.

6  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its eighth session (1999) UN Doc E/CN.4/2000/58, Annex II. Similar provisions are contained in the Mexican Draft of 13 February 2001 (E/CN.4/2001/WG.11/CRP.1, Art 14, former Art 10 [7]) and the EU Draft of 22 February 2001 (E/CN.4/2001/WG.11/CRP.2, Art 11, former Art 10).

7  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its tenth session (2002) UN Doc E/CN.4/2002/78, Annex II E.

8  See Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992) UN Doc E/CN.4/1993/28, para 26.

9  See E/CN.4/1994/25 (n 5) paras 53ff.

10  See Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1997) UN Doc E/CN.4/1998/42, paras 24ff.

11  cf below Arts 25 and 26 OP.

12  See E/CN.4/1998/42 (n 10) para 30.

13  ibid, para 31.

14  See E/CN.4/2002/WG.11/CRP.1, Art 10(3).

15  See ibid, Art 10.

16  See above 2.2 and Art 18 CAT.

17  See SPT, ‘Forth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2011) UN Doc CAT/C/46/2, para 11.

18  On 1 October 2012, Mr Coriolano resigned due to his election as a member of the Human Rights Council Advisory Committee.

19  See SPT, ‘Fifth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2012) UN Doc CAT/C/48/3, para 8.

20  Mr Coriolano was primarily responsible for the issue of NPMs, Mr Hajek was responsible for the issue of SPT visits, Ms Jabbour was responsible for the SPT’s external relations, and Ms Muhammad (being also the SPT Rapporteur) for the issue of jurisprudence; see CAT/C/48/3 (n 19) para 9; Ms Muhammad was at the same time Vice-Chairperson and Rapporteur of the SPT; this practice, stipulated in Rule 10 para 1 of the SPT’s RoP is different from all the other treaty bodies.

23  See also r 25.

24  cf also above Art 20(5) CAT.

25  See below Art 16 OP.

26  See SPT, ‘First Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2008) UN Doc CAT/C/40/2, para 60; see also Rachel Murray and others, The Optional Protocol to the UN Convention against Torture (Oxford University Press 2011) 96.

27  See CAT/C/46/2 (n 17) para 48.

28  See SPT, ‘(Former) Rules of Procedure of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2011) UN Doc CAT/OP/12/3.

29  See SPT, ‘Rules of Procedure’ (2013) UN Doc CAT/OP/3.

30  See SPT, ‘Summary Record of the 1st Part (Public) of the 1st Meeting’ (2007) UN Doc CAT/OP/1/SR.1.

31  See E/CN.4/2002/WG.11/CRP.1, Art 10(3).

32  See CAT/C/48/3 (n 19) para 29.

33  See below Arts 25 and 26 OP.